In Barry Lam’s Fewer Rules, Better People: The Case for Discretion, the largest portion of his examples of real-world cases of rules and discretion is framed in terms of sports competition, or law enforcement. Here, I look at how he explores rules and discretion in law enforcement.

He identifies two different forms of discretion in law enforcement. Selective discretion is the discretion to decide whether or not to enforce some law in a given case. Interpretive discretion is the ability to decide whether (or how) the law applies to a given case. In writing his book, he carried out interviews with police officers and district attorneys learning about their use of each of these forms of discretion.

One case of selective discretion is examined early in the book, taking place in the low-income community of Oniontown, New York. A young teen called Joey is caught by a store owner stealing items, who in turn calls the police. The officers quickly learn that the young teen stole bread, peanut butter, and some milk – he and his younger brother had no food at home and hadn’t eaten in days. They take pity on him, and try to work out an arrangement with the shop owner. At first the owner is angry and insists they arrest and charge the young teen. But the officers work out a deal, even framing it to the shop owner as a favor he would be doing to them, to instead put the boy to work. Have him clean the parking lot, wash windows, shelve some items – to work back for the items he stole. Eventually the shop owner relents and agrees. When the officers come back later in the evening to check in on the situation, they get this report from the shop owner:

“I’m sorry,” the owner said. “It’s just hard when you’re working so hard and someone steals from you. I want you to know that kid did such a good job that I gave him another loaf of bread and another half a gallon of milk. I made a bargain with him. I told him to come back each week. We would find something for him to do if he needed food. I’m not giving the kid cigarettes. I’m not giving him beer.”

According to [Officer] Mike, Joey went to work every week doing the same thing, cleaning the parking lot, cleaning the windows, and stacking the milk crates in the back for the deliver drivers to pick up. In exchange, he received bread, peanut butter, milk, and other grocery items, enough to keep his family fed.

“He probably got paid two or three dollars an hour, which isn’t much, comparatively speaking, but he didn’t get arrested,” says Mike proudly.

This kind of selective discretion, Lam notes, would also run afoul of various other rules regarding child labor, employment, and minimum wage laws:

Hypothetically, some nosey lawyer, or Javertian legalist could file some kind of complaint about the store owner “exploiting” a hungry child for labor.

If such a person were to report the store owner, it would not be good citizenship. I would hope any relevant bureaucrat in charge would have the wisdom and discretion to look the other way. Because if not, this kind of busybody reporting might spread fear among store owners, deterring them from letting shoplifters pay for their crime with labor, insisting on arrest, and making everyone worse off. If it came to be that some authority had to put a stop to these kinds of arrangements because she did not have discretion to let it continue, then that is a flaw, not a virtue, of the bureaucratic state.

According to the two officers involved in this case, Mike and Dave, understanding the virtue of selective discretion is something that comes with real-world experience:

Officer Mike says, “What you see is the younger kids, they all want to arrest. You did something wrong, you’re going to be arrested, because when you read the book, that’s what it says. The book doesn’t say ‘person does this wrong, try to figure out something good for them and then work it out.'”

“When you’re just starting out, you’re still learning the jobs. You haven’t seen a lot of things in the world, you haven’t dealt with a lot of people, so you go by the book,” Officer Dave explained. “When you get to be my age, you realize there’s a lot better ways to get someone to do something right,” he continued.

Interpretive discretion, by contrast, comes into play when rules are vague rather than precise. This kind of discretion is all but unavoidable – crafting rules that make precise and clear boundaries applying to every possible case is an impossible task. As an example, most states have speed limit laws – these are precisely defined. But not every traffic safety law is so precise:

Consider the basic speed law, a statue in almost every state. The basic speed law says that no one may drive faster than is safe for current road conditions. If the speed limit is fifty-five, but you are driving fifty-five during a blizzard when none of the roads are salted or plowed, you are in violation and may receive a ticket under the statute…Whether you are driving faster than is safe is in some sense a judgment call.

Lam argues that virtually all laws on the books are open to wide interpretations, making the use of both selective and interpretive discretion unavoidable facts of reality. As a result, decisions will always need to be made about how to interpret the scope and content of any given rule or law:

If a police department wants to implement the principle “interpret a vague statute so that as many acts as possible count as being a crime,” that is no less political than its opposite, “interpret a vague statue so that it excludes as many acts as possible.”

A commitment to by-the-book legalism is not only impossible in practice, but also serves to deflect examinations of how one uses this unavoidable discretion by casting it as simply applying legalism:

There is no more overused but false cover for a cop or prosecutor when trying to explain a blatantly wrong, controversial, or unpopular decision than to way that they were “simply following the law.” There is no such thing for cops and prosecutors as simply following the law when the law not only permits, but requires, discretion. No one with selective or interpretive discretion passively follows the law. There is always a choice of which laws (or which interpretations of the laws) to follow and which ones to ignore.

How, then, should the decisions be made in enforcing and applying laws? I’ll look at Lam’s foray into that territory in the next post.